South Carolina Law Review Volume 65 Issue 2 Article 4 Winter 2013 Toward a Better Understanding of Ripeness and Free Speech Claims Wm. Grayson Lambert Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation Lambert, Wm. Grayson (2013) "Toward a Better Understanding of Ripeness and Free Speech Claims," South Carolina Law Review: Vol. 65 : Iss. 2 , Article 4. Available at: https://scholarcommons.sc.edu/sclr/vol65/iss2/4 This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. Lambert: Toward a Better Understanding of Ripeness and Free Speech Claims TOWARD A BETTER UNDERSTANDING OF RIPENESS AND FREE SPEECH CLAIMS Win. Grayson Lambert* At first glance, ripeness is a simple concept. Yet, in its nuances, the doctrine is complex and uncertain. One aspect of the doctrine that has gained a consensus among courts and scholars is that, in free speech cases, the standard ripeness test is relaxed. This relaxed standard is justified on the grounds that free speech is critical to a democratic society and that courts cannot permit any potential chilling effect on free speech to stand Yet this lower ripeness standardfor free speech cases is not as sound as courts and scholars believe, and this Article rejects the validity of this lower standardas undeserved, unnecessary, and unclear. First,free speech cases do not deserve a lower ripeness standard because such a standardsuggests that other equally important rights-includingthe right to befreefrom unreasonable searches, the right to just compensation when the government takes one's property, and the right to vote-are not as critical as the right to free speech. Second, free speech cases do not need a lower ripeness standard because the normal testfor ripeness, which looks to the fitness of the issuefor judicial review and the hardship to the parties of withholding review, provides adequate protectionfor anyone seeking to challenge a law under the Free Speech Clause of the First Amendment. And third, even assuming that free speech cases deserve and need a lower ripeness standard,the current doctrine lacks precision regardinghow the standardshould be lowered. These three reasons lead to the conclusion that the consensus on the lower ripeness standard for First Amendment cases is not justified, and this Article calls for courts to apply the standardripeness test to free speech cases. I. INTRODUCTION ..................................... ...... 412 II. RIPENESS ............................................... 415 A. The Test....................................... ...... 416 1. Fitness of the Issuefor JudicialReview............. ...... 418 2. Hardshipto the Parties of Withholding Review.................423 B. The FoundationsofRipeness: Constitutionalor Prudential?............. 425 III. THE PREVAILING VIEW OF RIPENESS AND FIRST AMENDMENT CLAIMS ....434 A. Types ofFirstAmendment Claims ............................. 434 B. The Prevailing View ofRipeness and FirstAmendment Claims ......... 439 1. The Consensus on Ripeness and the FirstAmendment.................439 2. The Rationalefor This Consensus ....................... 443 * William Grayson Lambert. Associate, McGuireWoods, LLP. J.D., 2012, Duke University School of Law; B.A., 2009, University of Virginia. 411 Published by Scholar Commons, 2013 1 South Carolina Law Review, Vol. 65, Iss. 2 [2013], Art. 4 412 SOUTH CAROLINA LAW REVIEW [VOL. 65: 411 IV. TOWARD A BETTER UNDERSTANDING OF RIPENESS AND FIRST A MENDMENT CLAIM S.................................................................................446 A. Why First Amendment Rights May Not Deserve or Need a Special Ripeness Standard............................................................................... 447 1. Recognizing the Equal Value of Other ConstitutionalRights.......447 2. How the Standard Ripeness Test Adequately Protects First Am endm ent Rights ........................................................................ 453 B. How the Current Consensus Fails to Describe with Precision What the Relaxed Standard Entails-and the Dangers of This Lack of P recision.............................................................................................. 458 V . C ONCLU SION ............................................................................................... 463 I. INTRODUCTION First Amendment cases are often among the most captivating cases. The public and legal scholars eagerly await judicial decisions in high profile First Amendment cases. 2 In America's increasingly litigious society,3 some high profile free speech case always seems to appear in the news.4 A fundamental principle of the federal courts is that they are courts of limited jurisdiction, capable of exercising only the power granted to them by 1. Presumably, First Amendment cases attract attention for many reasons. My theory is that Americans are interested in First Amendment cases because the First Amendment is championed as one of the people's most fundamental rights, and the basic idea-freedom of speech-is relatively accessible, even if the nuances of First Amendment jurisprudence are not. 2. Consider the media reaction to several of the most highly anticipated First Amendment cases recently decided by the Supreme Court. See, e.g., Citizens United Round-Up: Morning Edition, SCOTUSBLOG (Jan. 21, 2010), http://www.scotusblog.com/2010/01/citizens-united-round- up-morning-edition/ (providing links to reactions in the media after the Supreme Court decided Citizens United v. FederalElection Commission, 558 U.S. 310 (2010)); Adam Liptak, Justices Take Up Funeral-ProtestCase, N.Y. TIMES, Oct. 7, 2010, at A21 (discussing the arguments in Snyder v. Phelps, 131 S. Ct. 1207 (2011)). 3. See, e.g., Marin K. Levy, Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Court of Appeals, 81 GEO. WASH. L. REv. 401, 407-09 (2013) (citing Carolyn Dineen King, Commentary, A Matter of Conscious, 28 HOUS. L. REV. 955, 956-57 (1991); Charles Alan Wright, The Overloaded Fifth Circuit: A Crisis in Judicial Administration, 42 TEX. L. REv. 949, 956-57 (1964); PAUL D. CARRINGTON ET AL., JUSTICE ON APPEAL 143-46 (1976)) (describing the rising caseload in federal district courts); Marin K. Levy, The Mechanics of Federal Appeals: Unformity and Case Management in the Circuit Courts, 61 DUKE L.J. 315, 321-22 (2011) (citing COMM'N ON STRUCTURAL ALTS. FOR THE FED. COURTS OF APPEALS, FINAL REPORT 14 tbl.2-3 (1998)) (describing the rising caseload of the federal circuit courts). 4. See, e.g., Katherine Long, Court Rules for Free Speech in Former WSU Professor's Lawsuit, SEATTLE TIES (Sept. 5, 2013), http:seattletimes.com/html/localnews/2021764491 wsulawsuitxml.html (discussing a case dealing with a state university professor's free speech rights). https://scholarcommons.sc.edu/sclr/vol65/iss2/4 2 Lambert: Toward a Better Understanding of Ripeness and Free Speech Claims 2013] RIPENESS AND FREE SPEECH CLAIMS 413 Article III of the Constitution. One jurisdictional requirement is ripeness, which "is peculiarly a question of timing." 6 As one scholar notes, the ripeness "doctrine seeks to separate matters that are premature for review because the injury is speculative and never may occur, from those cases that are appropriate for federal court action."7 Although the basic concept of ripeness is simple enough, the doctrine itself "remains a confused mix of principle and pragmatic judgment."8 Ripeness has been rooted in both Article III requirements and prudential considerations, yet without a clear indication of what role these different considerations play.9 What is clear-at least according to the consensus reached by the majority of federal circuit courts-is that the ripeness standard is relaxed in the First Amendment context. 10 Notably, however, the Supreme Court has never taken up this question, and given the lack of a circuit split, the Court does not seem poised to address this issue.11 Likewise, despite this consensus-or perhaps because of it-no scholar has carefully considered whether the relaxed ripeness standard makes sense.12 Instead of offering careful analysis, existing scholarship generally accepts this conclusion and offers the same justifications provided by courts, without delving further into the issue.13 Therefore, this Article challenges the accepted, yet 5. See Lance v. Coffmnan, 549 U.S. 437, 439 (2007) (per curiam) ("Article III of the Constitution limits the jurisdiction of federal courts to 'Cases' and 'Controversies."'); see also Ry. Mail Ass'n v. Corsi, 326 U.S. 88, 93 (1945) ("The conflicting contentions of the parties in this case as to the validity of the state statute present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract."). 6. Buckley v. Valeo, 424 U.S. 1, 114 (1976) (per curiam) (quoting Reg'1 Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974)). 7. ERwIN CHEMERINSKY, CONSTITUTIONAL LAW 92 (3d ed. 2009). 8. Sierra Club v. Yeutter, 911 F.2d 1405, 1410 (10th Cir. 1990). 9. See, e.g., Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 808 (2003) ("The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction."